A Challenge to Presidential Power
September/October 2006
by Dan Froomkin '85
On June 29, the U.S. Supreme Court struck down President George W. Bush’s order unilaterally establishing military commissions for suspected terrorists. The case in question involved a Yemeni detainee at Guantánamo Bay named Salim Ahmed Hamdan. Georgetown University law professor Neal K. Katyal ’95JD argued Hamdan’s case. It was not the first time the soft-spoken law professor had found himself in the middle of a politico-judicial firestorm. Katyal was also part of Vice President Al Gore’s legal team, asking the Supreme Court not to stop the 2000 Florida recount.
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“I thought the order was a hoax. I said, ‘This is so blatantly unconstitutional.’”
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By his mid-twenties, Katyal had worked with three of the preeminent legal minds of our time: as a summer associate in the firm of now-Supreme Court chief justice John Roberts; as clerk for former Yale Law School dean and U.S. Court of Appeals judge Guido Calabresi '53, '58LLB; and as clerk for Supreme Court justice Stephen Breyer. Now, at age 36, he has established himself as one of the premier constitutional scholars—and advocates—in the nation. In August, Katyal talked with Dan Froomkin '85, who writes the “White House Briefing” column for washingtonpost.com.
Y: Tell me how you first found out about Bush’s executive order.
K: It was November 13, 2001. We had recently moved to New Haven, where I was a visiting professor for the year. I was watching TV, and I saw on the bottom of the ticker on CNN: “President establishes military trials for suspected terrorists,” or something like that. So I got on the Internet and I typed in “White House” and when I read the order, I thought it was a hoax. I thought I had gotten to the wrong White House site—you know how there are some fake ones? I looked at it and I said, “This just can’t be, this is so blatantly unconstitutional.” I testified two weeks later in the Senate about the order. And from there I ended up writing an article with Larry Tribe of Harvard Law School for the Yale Law Journal.
Y: And then what?
K: It actually took until May 2003 for the president to appoint a prosecutor and a defense counsel, and at that point I started working with the defense team to construct a test case to challenge the tribunals. Hamdan struck me as being the best from a legal perspective.
Y: What happened when you first met Hamdan?
K: It was November 2004 when I finally got permission from the Defense Department to go down there and meet him. So I flew down to Guantánamo and I walked into his cell, and one of the first things he did was give me some dates and some raisins, which were essentially his only private possessions. He wanted to give them to me to say thanks for coming and for helping him. And then he turned to the translator and he said that everyone else in the room must leave except me. I thought I was going to be yelled at, you know: “Here I am for ten months in solitary confinement! You have done nothing for me! I’ve been in Guantánamo for nearly three years!” But, instead, he said to me, “You know, the military attorney told me about you, but I guess I don’t understand why you want to help me.”
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“Americans got a civilian trial. But if you were a foreigner, you got something really inferior.”
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So I paused for a long time, and then I said that I was doing this because my parents came to America to give their children better opportunities, and I couldn’t imagine another country on earth in which I would be able to do what I have been able to do. My parents came here from India, literally with eight dollars in their pockets, each of them. And what bothered me the most about the president’s order is that it said only foreigners would get this military justice system. If you were an American citizen, then you got a civilian trial. But if you were a green-card holder or a foreigner, then you got something really inferior. That was the first time that I felt our country was so fundamentally on the wrong path—and I had to do something.
Y: I gather that you like to moot things—practice what you are going to say—in front of a live audience. How many times did you moot your Hamdan argument?
K: Well, I can’t remember at the district court. At the circuit court, I think 11 times, and the Supreme Court, 15 times. Once I decided that I was going to actually do the argument and not give it to someone who has argued 30 or 40 Supreme Court cases, I thought it was very important that I do everything humanly within my power to be as good as I could be.
Y: Knowing what you know now about how these tribunals were devised at the White House, do you have any sense of why they didn’t do it in a way that was legal?
K: I think they thought they could get away with it, and they wanted to do whatever they could get away with. This was an outrageous, reckless legal gamble that put a lot of American credibility on the line. And fortunately the Supreme Court gave the country and world something to be proud of, which is to remind us all that America is a system of laws and not of men.
Y: If Congress, which now clearly has to take a role here, ultimately approves something very much like what the White House wanted, was it worth it?
K: Absolutely. The whole goal here was to say it’s up to Congress to pass these things, not up to the president.
Y: I read in one interview that you said your parents are disappointed that you’re not a doctor. Are they really?
K: Well, my dad passed away, unfortunately, right before I argued the case in the D.C. Circuit. But my mom has forgiven me. She forgave me when I married a doctor, not when I won this case. 
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